PrefaceDuring the 1995 Session of the General Assembly, a series of amendments to the Public Records Law (N.C.General Statute §132)were adopted. These additions add clarification in some instances, while in others the amendments are substantial modifications of existing requirements. The purpose of this memorandum is two-fold. First, it will summarize the key parts of the Public Records Law and thus serve as a reminder of these statutory requirements. Second, it will highlight the recent changes and suggest operational guidelines for implementing these new directives. In the paragraphs below, the regulatory framework for state institutions is separated into definitional and procedural sections.

What is a "Public Record "?

The statute itself provides the basic definition of a record labeled as "public." These records include "documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any [state] agency. . . ." Several points of this definition should be highlighted. Note first that the physical form of the record is not determinative; the purpose for the record drives the definition. Second, in determining what purpose the record serves, the law seems to reach a broad group of records held by state agencies. The "made or received" language reaches not only records held pursuant to legal requirements, it also covers records used and kept in carrying out lawful or official duties. Thus, a public record will include not only budget documents that the General Statutes explicitly mandate; it also will include, for example, the expense records of a state employee working on the agency's budget.

Another coverage question arises in the employment of independent contractors such as architects, environmental consultants, and insurance agents. If the records made and utilized by the contractor relate to the contract work he is performing for the agency or institution, the records likely will be considered public records even though they are not held by a "public official."

Finally, several types of records are given explicit treatment in the statute and thus bear emphasis here. The first concerns settlement agreements, the documents which recite opposing parties' mutual consent to end court litigation, an administrative proceeding, or an arbitration process. These records are public if they encompass an action against the state agency arising out of the agency's official actions, duties or responsibilities. Thus, the general requirement here is that all of these agreements will fall into the public record category. Two narrow exceptions, however, are provided to this usual rule. First, if the action is a medical malpractice claim against a hospital facility, any settlement reached may be sealed from public disclosure. The second shield applies to actions in which a judge, administrative law judge or administrative hearing officer has made explicit written findings that (1) the presumption of openness is negated by an overriding interest and that (2) such interest must be protected by sealing the settlement agreement. The written order must specify what the overriding interest is and must include findings of fact that are detailed enough to permit a reviewing court to determine the order's propriety. Two final notes here: in practical application, only a few settlements have been sealed under this provision; thus, the thrust of the statute remains geared to openness. Second, the form of the settlement agreement is not determinative. The agreement itself need not be labeled a settlement; it might take the form of a contract, a consent order or a check, a bank draft or any other "agreeing" format.

The second category of "public" records explicitly mentioned by the statute was added by the 1995 General Assembly and must therefore be carefully considered. These covered records include "electronic data-processing records," defined specifically as computer database indices (presumably, the data held in the database would itself be a public record). Where an agency or institution creates or compiles data or documents in a database management program or spreadsheet software, it must prepare an index to that database. Such an index must contain the following elements: (1) a list of data fields; (2) a description of the format or record layout;(3) the time schedule when the database is updated; (4) a list of any data fields to which public access is restricted (for definitional help here, see the sections below); (5) a description of the forms in which the database can be copied or reproduced using the agency's computing facilities; and (6) a schedule of fees for the production of copies in each available form. As to the exact index layout, the statute specifies that State Division of Archives and History will develop the "form, content, language, and guidelines for the index and the databases.

A few particular procedural definitions also are added to the statutory language. The requirement for a database index applies to a collection which is created and compiled by a public agency-. This indexing mandate therefore probably would include only databases that have some official character; that is, the compilation exists to serve a purpose of the agency or institution itself. Such a catalogue requirement then likely would exclude small databases maintained by employees as part of their work to do their job (i.e., their work to create a larger, official database). (Note: the employee's database probably would be defined as a public record; it is the indexing requirement which is negated.) Another facet of this definition concerns which agency is the creator of the database. Where one agency or institution simply gathers records from other agencies or institutions, it is probably not the "creator" or the "compiler" of the record. In these instances it therefore is not required to create a database index of the gathered records.

Finally, we are provided some guidance for dealing with existing databases, those created prior to the statutory date of June 30, 1996. The index requirement applies to databases created before that date only if data are being added to that database as of June 30, 1996. Thus, if data still are being added, it is still being compiled and will fall under the indexing requirement. Other than these specific guides, we must await the work of the Division of Archives and History.[Note: The Division published its guidelines on March 15, 1996.]

What Records Are Exempt From Disclosure Under The Public Records Law?

The Public Records Law itself lists only a few exceptions to the mandate of accessibility. There are, however, numerous other statutes and regulations, both state and federal, which specify the privacy of other specific records and documents. In addition, the courts have recognized several public policy exemptions which also add to the non-disclosure list. In the subsections below, many of the records are described and the limitations on disclosure explained. This is not, however, an exclusive list ; there are other specific types of records which may enjoy privacy protection. Where a record at issue does not appear on the list below and you are uncertain as to its disclosability, you will want to review the basic premise of the Public Records Law itself and consult with your university counsel. With that caveat in mind, the "closed" records that you likely will see are listed below. The Public Records Law itself contains the first five exceptions; the remainder are found in other statutes or judicial pronouncements.

Confidential Communications By Legal Counsel To A Public Board Or Agency

Exempted here are written communications by counsel (and records of those communications) to any public board, such as the Board of Governors and the Boards of Trustees. To be protected, the communication must be made within the scope of the attorney-client relationship and must concern a claim against or on behalf of the institution or agency (or its governing board). Also exempted here are written communications concerning the prosecution, defense, settlement or litigation of any judicial action or administrative proceeding. Neither the agency nor its board need be a named party; as long as the claim, action or proceeding affects these entities (or could affect them), the communication about these issues is protected. There is a limit, however, on the time these writings can be shielded. The covered records will become public records three years from the date the communications were received by the agency or its governing board. Finally, two additional points should be noted. First, the privilege of nondisclosure belongs to the agency or board; if this entity so decides, it may disclose these records to the public at any time. Second, the "work-product" of an agency attorney also may be covered under this exemption. Thus, materials prepared by the attorney as part of his representation of the client agency also may be protected from disclosure. (Neither the courts nor the statute have addressed disclosure of work-product material.)

State Tax Information Held By State Agencies

The Public Records Law specifically refers to several statutes regulating tax information and then provides that unless disclosure is permitted by those statutes, the information is protected from access. Records closed here concern the liability of individual taxpayers; the permissible disclosures are quite limited. For specifics, see North Carolina General Statutes 105-259, 153A-148.1 and 16OA-208.1.

Trade Secrets Furnished to a State Agency In Connections With a State Contract

The third statutory exemption from diclosure covers trade secrets owned by a private person.Here, the protection arises when the owner discloses the trade information to a public agency as part of the owner's bid for or performance of a state contract. Additionally, in situations where state or federal law requires disclosure of certain information by private businesses, trade secrets furnished as part of this disclosure also would be shielded. For all disclosures of trade secrets, however, to gain protection, the owner must actually designate the information as a "trade secret" or as "confidential" at the time it is first disclosed to the state agency.

Certain Sealed Settlement Agreements

As noted in the first section above, settlement agreements entered into by state agencies or state officials generally are to be treated as public and subject to full disclosure. The law itself does provide two limited exceptions: medical malpractice cases and judicially sealed settlement agreements.(See requirements for this court-ruled protection as listed above.)

Criminal Investigation Records And Intelligence Information Records

A recent addition to the "nondisclosure" list is the 1993 amendment providing protection for certain criminal investigation and criminal intelligence records. Data covered here include information compiled by a federal, state or local law enforcement agency for the purpose of preventing or solving violations of law. The categories of information protected are broad, including witnesses' statements, lab tests, surveillance data, investigators' reports, statements from confidential informants, photographs and measurements. (For our purposes, investigatory records of the campus police would be included in this nondisclosure category.) There are certain types of information within these records, however, that must be made public. These "incident report" categories include: the time, date, location and nature of the alleged crime; the name, sex, age, address and employment of the person arrested, charged or indicted; the particular crime allegedly at issue; the circumstances of the arrest including the time, place and items seized, and whether the arrest involved resistance, a weapon or pursuit; the agency's broadcast records that reflect material transmitted over public channels; and the name, sex, age and address of the person who filed the charge. (The last data type may be temporarily withheld if health or safety are threatened or if the investigation would be compromised by early disclosure. When the danger passes or investigation culminates, the data must be released.) Finally, even where information would be shielded under any of the above provisions, a state or federal court may find that justice would be served by disclosure and may enter an order accordingly. Likewise, where an incident report category would be considered open in the usual case, a court may find an ongoing investigation or the right to a fair trial warrants protection of the identifying information. Thus, particular crimes and particular investigations may invite special disclosure rules that are tailored to situations at issue and must be followed in that case.

Minutes Of Closed Meetings Under The Open Meetings Law

Minutes of official meetings of public bodies, such as our governing boards, are of course considered public records and must be disclosed. Minutes of closed sessions also are considered public, but are not open to public inspection if such disclosure ". . . would frustrate the purpose" of the closed session. (See the Open Meetings Law for guidance on open and closed meetings.) Note, however, that when the purpose of the closed session has been accomplished, inspection must be allowed. (The best example of this situation is consideration of candidates for positions. While the consideration discussions and the minutes thereof may be initially shielded, once the final decision is made, the minutes of the closed session must be available to the public.)

Privileged Disclosures

North Carolina law recognizes certain "privileged" relationships and protects the communications between the parties to those relationships. Thus, the written or oral communications between a physician and a patient, a psychologist and client, and a social worker and client are shielded from disclosure under Chapter 8 of the North Carolina General Statutes. (Although only the statutory section concerning the physician-patient privilege specifically refers to the Public Records Law, many courts recognize a similar shield for the other statutory privileges.) For our purposes, this means that records or other data held by our institutional medical staff and psychologist employees generally will not be discloseable. (Note that the Americans with Disabilities Act [the ADA] also requires that records of "disabilities" must be held confidentially.) Finally, there is one important exception to this "non-disclosure rule": The privilege belongs to the patient or client and that individual therefore has the power to waive the privilege. If a waiver has been given, the records must be disclosed to the individuals specified by the patient or client and only to those individuals.

Personnel Files

Chapter 26 of the North Carolina General Statutes explicitly provides an exception to the Public Records Law for material held in a state employee's personnel file. To understand what comprises such a file, North Carolina General Statutes Section 126-22 defines these records as ". . . information [which] relates to the individual's application, selection or nonselection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and determination of employment, wherever located and in whatever form." Thus, records or documents which refer to these matters generally are not discloseable and must be shielded. Two important exceptions to this "nondisclosure rule," however, must be noted: (1) North Carolina General Statutes Section 126-23 provides that certain employment data will be open to the public (including: name, age, date of original employment or appointment, current position, title, current salary, date and amount of most recent salary increase or decrease, date of most recent promotion, demotion, transfer, suspension, separation or other change in position classification, and the office to which the employee is currently assigned); and (2) the statute provides that the employee himself will have access to the entire file except for pre-employment letters of reference and information concerning a physical or mental disability, "that a prudent physician would not divulge to a patient. . . ." Presumably, then, for the rest of the file, an employee could then divulge its contents to whomever he or she wishes.

Student Records

The ninth exception is created by a federal law mandating the privacy of student records. The Federal Educational Rights and Privacy Act (FERPA) requires that educational institutions protect the privacy of all material which personally identifies a student, regardless of the form of the data or its location. The federal regulations interpreting the statute do contain several exceptions, but these are quite limited, have distinct procedural requirements preceding disclosure, and also mandate strict limits on redisclosure. Rather than list all of those limitations, we suggest that you review these FERPA regulations themselves (34 CFR Part 99). For our purposes here, remember this benchmark: material about a student that we hold in whatever form and in whatever place is generally considered confidential. The student himself or herself can direct disclosure for most of this material, but institutional officials usually have no independent right or authority to disclose this to a member of the public. (This statute and its mandate are particularly important in understanding some of the procedural requirements discussed in Section IV below.)

Library Records

An exception required by a state statute is found in North Carolina General Statutes Section 125-19. This section provides that a library may not disclose certain information about its patrons, including what material, information, or services were requested or obtained by those individuals. (This mantle of privacy will apply to these categories of information held by our institutional libraries.) On three limited occasions, the "patron information" may be disclosed: (1) when necessary for the library's reasonable operation; (2) where the patron has consented in writing to the disclosure; and, (3) when a subpoena or court order has been issued demanding the information.

Public Health

North Carolina's Public Health Law provides the next exception. Under the provisions of Chapter 130A of the North Carolina General Statutes, certain reports must be maintained confidentially. Article 6 of this Chapter prohibits the disclosure of all information records and reports of communicable diseases as defined by the State Commission for Health Services. Thus, where our student health service or campus physician has information concerning these conditions, it must hold this data securely. Certain limited exceptions of this nondisclosure provision are listed in North Carolina General Statutes 13OA-143; that statute should be reviewed whenever a request for this information is made.

What are the Procedural Requirements for Disclosing Public Records?

Once the definitions of a public record and their exceptions are understood, the next question is what process must be followed in providing access and maintaining those records. This section and the following one will outline these requirements.

Which Agency Or Institution Must Provide Access?

On occasion, the question may arise as to who "owns" the records at issue. For us at the University, each constituent institution will maintain its own records and provide access accordingly. What is the procedure where the institution submits data from their own records to General Administration? Does GA become the "owner" of the forwarded material? While the statute itself and the new amendments do not speak to this question directly, it seems reasonable to answer the above inquiry "no." Where the recipient (in our example, General Administration) institution merely holds data for safekeeping, storage or routine data processing, the person requesting access should be directed to the institution which officially maintains (or created) the file. This is particularly important in cases where the request concerns student or personnel material, information which may be confidential under the federal and state statutes discussed above. Because the recipient institution (in this example, General Administration) will not know whether consent for disclosure has been given or whether an exception to the confidentiality provisions applies to this particular request, it should not try to determine the access issue itself, but instead should refer the request to the institution which originally created the file.

Can The Custodian Of The Files Ask The "Requester" To State Why He Seeks Access?

In the past, record custodians occasionally asked persons requesting access why they needed the material or what it would be used for. The inquiry grew from concerns that those persons might use the material in ways that could invade the privacy of other citizens. Regardless of this understandable motive, a new amendment to the Public Records Law prohibits such questions. North Carolina General Statutes Section 132-6(b) bars a custodian from demanding the purpose of or motive for the request as a condition of access or copying. Even if such questions are not posed as a condition of access, but are asked merely for informational purposes, we suggest that the better practice is not to ask at all.

When Should Access Be Provided?

When a request to see records is made, the custodian's responsibility is to provide access "at reasonable times" and "under reasonable supervision." Thus, we need to be ready to meet these requests during most office hours unless the immediate work needs of the institution demand a slight delay. Because of our responsibility for the maintenance and safekeeping of the records, we probably should in fact supervise the examination. If immediate supervision is not possible, access should be delayed until an institutional staff member is available to oversee the review.

What Are The Procedures For Copying Public Records?

Any person may request a copy of a public record, and as is true in the case of a request for access, it is not permissible to require the requester to state why he wants this duplicate. As to how soon the copy must be made, the old law did not speak to the time within which a custodian had to meet the request. The recent amendments give us new guidelines on timeliness, stating that a custodian must respond "as promptly as possible." While that provision is not specific, it does appear that we have a duty to respond within a reasonable time.

Fees for copying records also are clarified under the new amendments. For noncertified copies, an institution may charge only the actual cost of making the copy. North Carolina General Statutes 132-6.2 defines this term as "limited to direct, chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles. . . [it] does not include costs that would have been incurred by the public agency if a request to reproduce a public record had not been made." Thus, although we may indeed charge for copies, we must be prepared to justify that cost, showing what calculations we used to establish that base and excluding any indirect and ongoing costs such as depreciation of equipment, salaries of personnel (unless the copy request required overtime work) or office overhead.

Three exceptions to this minimal charge limit are also found in the law. The first covers two types of requests: (1) a request that requires extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved," or (2) a request to produce a record in a particular medium that results in "greater use of information technology resources than that established by the agency for reproduction of the volume of information requested..." In reproduction of the volume of information requested..." In these cases, a special service fee may be charged if it is based on the actual costs incurred for using the technology or personnel to provide the copies. Such a charge therefore likely would include both the equipment and labor costs necessary to respond to the request.

The second exception concerns certified copies, duplicates that include a statement by the institution that the copy is a true and accurate copy of the original. Fees for these copies are set by other provisions of the General Statutes and thus we must charge the statutory amount if a certified copy is requested. Similarly, the third exception covers requests for copies of other records where a fee schedule is statutorily prescribed. In these specific instances, again, only the statutory amount may be charged. One final note on recovery of costs: when mailed copies are requested, the postal costs may be added to any permissible copying fees.

May The Custodian Require That The Request For A Copy Be In Writing?

Another new amendment speaks to requests for copies of computer databases. North Carolina General Statutes Section 132-6.2(c) expressly permits a custodian to require written requests for copies of these computer files. While this change does not specially include requests for copies of other types of records, we believe that a consistent requirement for written requests would be judicially sustained. A practical advantage of such a requirement is that a record of all requests will thus be established. If an issue arises as to whether copies were sought, this record will assist us in discovering exactly what was requested and when the request was made.

One additional provision in this amendment bears particular emphasis. If a custodian denies a request for a copy of a computer database, he must provide an explanation for the denial. If the requester seeks an answer in writing, the denial must be so provided. To complement the above suggestion, if all requests (and not just requests for computer databases) are required to be in writing, then explanations for denials also should be given. If the person seeking copies then asks for a written denial, the explanation should be given in that form.

In What Form Must The Copes Be Provided?

Sometimes, we receive requests seeking a record that we do not compile. Instead, an individual may ask that we extract data from other records and make a new one. The Public Records law does not, however, require that we create a record that does not exist. Similarly, if a record is maintained in a non-electronic format, the law does not mandate that we convert the record to an electronic medium. (If an institution voluntarily elects to create or compile a record, it may negotiate a reasonable charge for the extraction or compilation.) If, on the other hand, we maintain a record in several formats (or are capable of multiple formats), we must provide a copy of the record in any available medium. A particular format may not be denied simply because another medium is preferred for making copies. For example, if a record is maintained on tape, we must comply with a request for a copy on a computer disk, even though we might rather provide a copy of the record in tape form. It is permissible, however, to assess differing copying fees for different media. The pricing guidelines set out above should be used for setting these fees.

What If Both Public And Nonpublic Or Confidential Material Is Contained In One Record--Must An Extraction Of The Public Material Take Place And If So, Who Pays?

If a person requests access to a record containing both public and confidential data, we may not deny a request for access or copying simply because the material is not separately maintained. It is our responsibility to separate out the public material and provide access or a copy "as promptly as possible" (i.e., within a reasonable time). While the old law did not specify possible fee charges for this extraction, a new amendment gives us a limited opportunity to cover our costs for providing this service. Until June 30, 1996, the requesting person may be charged the actual cost of separating out the public material from the confidential data. After that date, it is our responsibility both to prepare the available data and to cover the costs of doing so.For our purposes, such requests likely will concern personnel records or student records. As noted and explained in the sections above, certain portions of these files are considered public while other data stored in these records will be confidential and not discloseable. One important distinction in these two types of files should be remembered: North Carolina state law requires that certain personnel information be made public, whether or not a particular employee has consented to a request for access. Thus, for these files an extraction usually will be required. Student files, on the other hand, are governed by the Federal Educational Rights and Privacy Act which allows disclosure of "directory information" only if a student has been previously notified of possible disclosure and then has been given an opportunity to object. Thus, where a request for material from student files is made, an institution must ensure that no objections have been filed before it may release any material in which students may be individually identified. This identifying material also includes compilations of aggregate data in which individuals can be identified by the small number of cases and the combination of several reported criteria associated with them (for example, reporting the average college GPA in a cell where there were only 2 minority female freshmen students in a particular college).

How Should Public Records Be Protected?

A person requesting access to a public record has a right to see the original document, tape or data processing record and this right exists even if the record has already been published and is available generally to the public. There is, however, an additional public interest in maintaining the record in good physical condition and thus, the record custodian has a duty to care for the materials under his control. To do this, he can and should supervise the inspection (see paragraph C above) and should ensure that the record is always maintained securely. If, because of security concerns about a particular record or because of the physical condition of the record (age, fragility, etc.), extra precautions are needed, the law permits special restrictions to be placed on public access. Likewise, where copying the record in a particular format might damage the material, reasonable restrictions on this copy format may be enforced. (See North Carolina General Statutes 132-6(f).

What Happens if the Law Is Violated?

If a person is denied access to a record or is denied a copy of a record, he may bring an action in the Superior Court of the county in which the record is located. The case will be accelerated on the court's docket and all hearings or proceedings concerning the case will be given priority in the trial and appellate courts. If the person requesting access or a copy prevails in court, the judge may award him attorney's fees if it finds (1) that the institution acted "without substantial justification," and (2) that no special circumstances make the award unjust. In most such actions, the fees will be assessed from the institution's operating budget. If, however, the judge finds that the official or employee denying access or a copy "knowingly or intentionally" violated the statute, the attorneys fees will be charged to the individual responsible. One exception exists to this it employee pays" rule: if the official or employee sought and followed the advice of an attorney, no fees will be charged to him (in such a case, as above, the fees would be , assessed against the institution's operating budget).

Finally, if the person bringing the suit does so in bad faith or if the lawsuit is frivolous, the judge may (but is not required to) charge the fees against him and award this amount to the institution.

Final Reminders

As you can see this is a complex law with its own specific statutory definitions, procedural rules and enforcement provisions. Always remember that the law's benchmark is: all institutional records should be considered public unless a specific exception applies. Thus, in most cases, we should lean toward access. The two exceptions you will see most are the student file and personnel record limitations. But recall that these are not blanket exclusions: certain material in these records may very well be accessible and it is up to us to separate that data out and provide access (or a copy). For more interpretive help in dealing with the exceptions, database index definitions, or the formatting of certain public files, we must await regulations from the Department of Archives and History.